HKSAR v. LI PING

CACC527/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.527 OF 1998

(ON APPEAL FROM DCCC 833 OF 1998)

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J U D G M E N T

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Stuart-Moore, V.-P. (giving the judgment of the Court):

1. On 29th September 1998, the Applicant was convicted of robbery in the District Court, following a trial before Judge Fung. He pleaded guilty from the outset to a second charge of remaining in Hong Kong without authority. He was sentenced to a total of four years and seven months' imprisonment. He now seeks leave to appeal against conviction and sentence. Mr. Laskey only represents the Applicant so far as the former application is concerned.

2. The facts of the robbery were simple and straightforward. The victim's evidence was all-important. The case depended on his having correctly identified the Applicant as one of two men who bore responsibility for robbing him. Mr. Laskey makes the point that the victim never truly identified the Applicant when his words are examined as to the events at the identification parade.

3. The offence occurred in conditions of apparent good street lighting, although the time was 1.50 a.m. on 16th June 1998. The victim had just stepped off a minibus in Tuen Mun. He was on his own. Two men approached him. One of the men had a knife. The other threw several punches which the Applicant was able to ward off with a bag. It was this second man who was allegedly the Applicant. The conversation which took place was in Putonghua. Money was taken from the victim's wallet, both in Hong Kong dollars and Renminbi. The robbers then fled.

4. Later that day, the Applicant was arrested with a second man. We were informed during the course of the hearing that it was about 15 hours later that this occurred. The Applicant had been sleeping on a stone bench in Hung Lau Park very close to the bridge where the robbery had occurred. He had, of course, no proof of identity on him, and it was noticed that in his rucksack he had HK$39.60 and about RMB$335.

5. For reasons that will emerge as significant at a later stage, it is worth mentioning that the Applicant was allegedly able to walk perfectly normally without hindrance of any kind at the time of his arrest.

6. In interview at the police station, the Applicant denied robbery and admitted being an illegal immigrant.

7. On 17th June 1998, taken from the Reasons for Verdict in the appeal bundle at page 14N, the victim attended an identification parade, that is to say just one day after the event, and, according to him, he picked out the Applicant saying "ho chi", meaning the Applicant "looked like it". He said the female Senior Inspector (PW3) in charge of the parade asked him to clarify. He used the expression "ying goi" meaning "it should be him". The judge accepted this version of events in preference to PW3's account, in which she had said there was no clarification requested. Mr. Laskey suggests that the judge ought to have found that the police inspector was the more reliable of the two witnesses because she had a book which recorded contemporaneously these events, whereas the victim was relying on his memory when he gave evidence in court, which was by then about six months old.

8. There then followed, after the first parade, a second parade for another man who had been arrested with the Applicant, but here the victim made no identification because he said that he was not "100% sure".

9. The Applicant gave evidence in his defence at trial saying that he had suffered a cut to his foot from a piece of glass whilst he was taking a bath in a pool, and that his wound bled profusely for about 40 minutes. He had dressed it with tissue paper. This was evidence which, if believed, might have reinforced the conclusion that the Applicant had not carried out the robbery.

10. The judge said in his Reasons for Verdict at page 15 O of the appeal bundle:

"It was not disputed that when the defendant was interviewed by the CID officer in the evening of 17 June his leg was observed to be injured and he could not walk properly. However, he turned down the offer to receive medical treatment since it was too embarrassing to appear in handcuffs in a public hospital."

11. The judge then went on to consider the evidence relating to the identification itself and the evidence given by the victim as to how, at the identification parade, he had intended to convey that he was sure it was the Applicant who was his assailant. This takes into account that at the trial itself the victim was by then saying that he was sure that the Applicant had been correctly identified.

12. At page 16S, the judge went on to say:

"It was submitted that no weapon was found on the defendant or within a radius of 50 feet from the scene of arrest. PW1 had also not mentioned the defendant as carrying a black rucksack and counsel asked the court to accept the defendant's foot was seriously injured at the material time which made it unlikely for him to have committed the robbery."

13. When this matter came before the court on the last occasion, we indicated that we thought the Applicant should receive Legal Aid in order that his conviction application should be properly argued. As the result, Mr. Laskey has now put before us a number of grounds and, with the background which has already been given, it is not surprising that the main points are directed at the quality of the identification.

14. Firstly, Mr. Laskey submitted, as we were to expect from grounds 1, 2 and 3 of the Perfected Grounds of Appeal, that the victim had, in his original statement, provided no details of facial appearance and furthermore had not mentioned actual or attempted violence. As to these points, Mr. Laskey quite rightly says that they are subsidiary to ground 4, to which we will come in a moment. However, dealing with the absence of reference to facial details, the victim did agree in his evidence at trial that these were not in his statement. He went on to say that the police asked him if he could recognize the robbers again and he replied that he was very sure he could. It is also clear that the first statement did not make any reference to actual or attempted violence. It referred, as appears from the transcript of the trial only to the production of a knife.

15. It may be that these points serve only to indicate that statements are sometimes carelessly taken, or that witnesses may sometimes fail to recall important matters in the aftermath of a traumatic event all the details of what has happened. It certainly comes as no surprise to this court that a victim was unable to describe facial details although he was able express confidence that if he attended an identification parade he would be able to identify the culprit, assuming he was standing on it.

16. There would, in the context of the further complaint made in these grounds concerning inconsistencies, have been little or no reason for the victim to make up the evidence of warding off punches which is what the victim ultimately said had happened contrary to the earlier account he gave in his statement.

17. We cannot see that strength is added to the application by any of these points.

18. These grounds must fail.

19. Turning to the much more important grounds which are left. In grounds 4, 6, 8 and 9, the effect of the submission is that the identification cannot be relied upon. It is submitted that the victim failed to make a positive identification at the identification parade despite the fact that the judge found that he had. In broad terms, the victim's evidence about this in cross-examination was as follows (at page 42C of the appeal bundle):

"Q. In the identification parade you walked past all the persons standing on the parade, right, before you identified this person, right?

A. That's right.

Q. What did you say after you point him out?

A. I said I can recognise that this is the one.

Q. Am I correct to say that by that time, you only say that he seemed to be the one?

A. No, I said he was probably the one."

20. This is, of course, in English as interpreted from the witness' Punti by the court interpreter. There was a slight dispute as to the victim's use of language and the tape had to be played back. Eventually, it seems with everybody's agreement, the judge on page 43N said this:

"'Ying goi hei' and I record it as either 'should be' or 'very likely'."

21. Later in the cross-examination, there was this interchange at page 46A:

"Q. Mr. Lee, I put it to you that after you viewing the line-up for a while, you told the inspector there, the female inspector there, 'No.3 seemed to be.' There is no more conversation, do you agree?

A. That's right.

Q. But why do you say earlier the inspector clarified by asking you questions in order to clarify, 'What do you mean by "should be"?' Mr. Lee? Why you say that earlier?

A. Is it possible that because of my working environment, I am accustomed to use these words?

Q. But so what? Did the female inspector ask you questions in order to clarify the words, 'should be', during the ID parade, Mr. Lee?

A. No.

Q. So why say that earlier?

A. I did not say she did, but when she asked me again, I said, 'should be'.

Q. I put it to you that she never ask you again, Mr. Lee.

A. She did because I said it seems it was him. But she did. When she asked me back, I said 'yes' and then she asked me and I told her the number, that is the person."

22. There were other passages also to which our attention was directed by Mr. Laskey during the course of the hearing and also by Mr. Albert Wong, on behalf of the Respondent, in his written reply, where the victim was questioned as to what he had said and thereby intended to convey at the identification parade.

23. As Mr. Laskey points out, PW3 in her evidence, as the police supervisor at the identification parade, was asked to say what the victim had said and she replied:

"A. He said, 'No.3. It seems he was.'"

24. On that same page, the witness went on to say this:

"Q. After reading and explaining the procedures to the witness, then you ask Lee Siu-ming to view the parade line-up at his own time.

A. Yes, that's right.

Q. How long he took for the viewing?

A. He viewed the row for a while.

Q. About five minutes?

A. I did not check the time.

Q. He walked to and fro?

A. That's right.

Q. Then he turned around and told you, 'No.3 seems to be the person,' right?

A. Yes, that's right.

Q. Did you ask him any further questions?

A. I did not.

Q. Any further conversation between you and him before he left the parade room?

A. No.

Q. You're very clear about that?

A. I am."

25. All of this was covered with considerable care by the trial judge in his Reasons for Verdict and we are bound to say that it is difficult to see how Mr. Laskey can justify the suggestion that this was not considered when it patently was. He does add in his Grounds of Appeal that it may not have been sufficiently considered but, when we look at the Reasons for Verdict, it seems to us that no more could have been said on the topic than was said by a judge who had carefully looked at all of these matters. The trial judge, we bear in mind, had the advantage of being bilingual but, whether or not he had been bilingual, this issue had been closely examined, leaving the judge feeling able to accept that in the end the victim had made a positive identification of the Applicant.

26. Mr. Laskey's next submission was that the judge erred in placing weight on the victim's failure to pick out the suspect on a second identification parade. The ground is misconceived. All that the judge was trying to do was to illustrate the care which the victim obviously displayed in deliberately not identifying someone about whom he was "not 100%" sure. This did not serve to strengthen the identification in itself of the Applicant, but it did help to throw light on the words which the victim used when apparently identifying the Applicant on the first parade. The judge effectively found, and we agree with him, that the victim had identified only because he was sure even though in the English translation and the literal Chinese he had not used the word 'sure'. In other words, the victim was only prepared to point at the Applicant because effectively he was sure but he was not prepared to point at the second suspect because he was not completely sure. The evidence about what happened on the second identification parade helped to understand the language of the victim but did not help to confirm the identification of the Applicant as one of the robbers.

27. The final matter raised in relation to the evidence of identification is that the judge failed adequately to take into account that there was no supporting evidence. This was a Turnbull case, assuming identification to have been positively made, because the case entirely depended upon that identification. There is no reference to the Turnbull case by its name, but it is apparent from the text of the Reasons for Verdict that the judge was aware of the appropriate tests to be applied before relying entirely on the evidence of identification. As he pointed out, there was plenty of time in which the victim could observe the Applicant in sufficient lighting and the identification parade was held within a very short time of the robbery itself.

28. These grounds must fail.

29. As to the remaining grounds, these can be dealt with very shortly. Indeed, Mr. Laskey while making his submissions on these grounds, wholly properly took the same course.

30. Mr. Laskey submitted in ground 5 that the judge failed to give adequate weight to a foot injury of the defendant that would have lessened his ability to run. In the seventh ground, he submitted the trial judge had failed to give sufficient weight to the defendant's evidence and his good character.

31. Neither of these grounds carries a great deal of weight and certainly none that could affect the outcome of the application because the judge, more than adequately, dealt with both. The Reasons for Verdict indicated that character was taken into account, even though strictly speaking, as the judge pointed out, a good character direction was not required because of the Applicant's illegal entry to Hong Kong. He had only been in Hong Kong a very short while. In any event, the judge was mindful of both issues which are the subject of complaint in these grounds and he dealt fully and fairly with each in turn.

32. We are satisfied that, when the whole of the matter is looked at together, the judge had dealt in detail with all important aspects of this case, and had properly considered the identification based upon the responses of witnesses that he had been able to see and to hear. There was, accordingly, nothing unsafe or unsatisfactory about the conviction for the robbery.

33. The application is, therefore, dismissed.